Please join me and my colleagues for a 4-hour comprehensive anti-SLAPP workshop sponsored by Pincus Professional education on Wed. 10/6/10 from 1:00pm to 5:30pm. The Panelists will by myself and my distinguished colleagues, Judge Amy Hogue, Phil Goar, Senior Judicial Attorney for the Court of Appeal 2nd Dist., Div. One, and Ben Shatz, Esq. of Manatt Phelps LA. The seminar materials contain a variety of key SLAPP cases and legislative history as well as an actual SLAPP complaint, SLAPP motion, SLAPP discovery motion and other SLAPP pleadings. There have been a lot of new developments in anti-SLAPP law over the past year, including a very recent amendment that became effective this year which precludes a prevailing SLAPP defendant from recovering SLAPP fees in cases where the liability is based on alleged violations of the Ralph M. Brown Act.
I look forward to seeing you there. Go to my website www.slapplaw.com for more details.
Jim
Thursday, September 30, 2010
Monday, March 8, 2010
4/13/10 - Pincus SLAPPinar on the elusive "gravamen" concept
Go to PincusProfessionalEducation.com for details on the SLAPP webinar (SLAPPinar) on 4/13/10 from 1:00pm to 2:30pm. Please join me for an intermediate SLAPPinar on the elusive "gravamen" concept. Actual complaints will be analyzed to illustrate the application of the gravamen concept in plain and mixed SLAPP cases. Disagreements among various Appellate Districts will be highlighted.
SLAPP fees Nondischargeable in Bankruptcy Under New Federal Bill
A Bill introduced in the House of Representatives on 12/16/09 would provide that litigants with procedures to combat SLAPP suits. These protections are needed to protect citizen participation in government and freedom of speech, according to the text. The Citizen Participation Act of 2009 (H.R. 4364) was introduced 12/16/09 by Rep. Steve Cohen (D-Tenn.) and is pending in the judiciary committee.
For an action brought in state court in a state court, the defendant would be permitted to remove the suit to federal court for the purpose of filing a special motion to dismiss. It is modeled after California's anti-SLAPP legislation and has similar exceptions for public interest and commercial speech set for in CCP 425.17. A prevailing defendant on a special motion to dismiss would be entitled to attorney's fees and the fee award would not be dischargeable in bankrupcty.
This new bill, when passed, will have profound malpractice and SLAPPBack malicious prosecution implications for SLAPP suit filers (plaintiffs) and the attorneys who represent them.
In other words, once the fees are awarded, they are nondischargeable even if there is no finding of fraud, or willfull or malicious conduct on the part of the SLAPP filer. So some innocent plaintiffs and their attorneys will be unfairly harmed by this law. So now there is much more at stake for plaintiffs opposing SLAPP motions and SLAPP fee motions than ever before. All the more reason to have a competent SLAPP attorney screen your complaints and cross-complaints before they get filed and to use expert declarations to testify for the lowest fee award possible. See prior 2/26/10 blog on SLAPP damage control$
Overall, however, I think it is great from the defense perspective that SLAPP fees may soon be nondischargeable in bankruptcy. Now collection is less of an issue in SLAPP fee cases.
This new bill will give anti-SLAPP laws throughout the nation the most powerful jaws and sharpest teeth of any pre-trial dismissal motion on the books.
For an action brought in state court in a state court, the defendant would be permitted to remove the suit to federal court for the purpose of filing a special motion to dismiss. It is modeled after California's anti-SLAPP legislation and has similar exceptions for public interest and commercial speech set for in CCP 425.17. A prevailing defendant on a special motion to dismiss would be entitled to attorney's fees and the fee award would not be dischargeable in bankrupcty.
This new bill, when passed, will have profound malpractice and SLAPPBack malicious prosecution implications for SLAPP suit filers (plaintiffs) and the attorneys who represent them.
In other words, once the fees are awarded, they are nondischargeable even if there is no finding of fraud, or willfull or malicious conduct on the part of the SLAPP filer. So some innocent plaintiffs and their attorneys will be unfairly harmed by this law. So now there is much more at stake for plaintiffs opposing SLAPP motions and SLAPP fee motions than ever before. All the more reason to have a competent SLAPP attorney screen your complaints and cross-complaints before they get filed and to use expert declarations to testify for the lowest fee award possible. See prior 2/26/10 blog on SLAPP damage control$
Overall, however, I think it is great from the defense perspective that SLAPP fees may soon be nondischargeable in bankruptcy. Now collection is less of an issue in SLAPP fee cases.
This new bill will give anti-SLAPP laws throughout the nation the most powerful jaws and sharpest teeth of any pre-trial dismissal motion on the books.
Friday, February 26, 2010
SLAPP Damage control$: Use of expert declarations in SLAPP fee motions
SLAPP is all about fees. The threat of a sizeable mandatory fee award to the prevailing SLAPP defendant is what generates the enormous leverage and bargaining power for the prevailing party. Plaintiffs want to avoid this fate and defendants want to get their SLAPP motion granted and obtain the highest award of fees possible. An expert declaration is like adding a turbo charger to a defense fee motion and is absolutely indispensable for a losing SLAPP plaintiff seeking to minimize the fee award.
The use of expert declarations in making and opposing SLAPP fee motions provides maximum persuasive power in convincing the judge to move as close as possible to the number ultimately sought. Obviously, in the case of an unsuccessful SLAPP plaintiff, zero is ideal but unrealistic in most cases. In cases where the amount of fees sought by the prevailing SLAPP defendant approaches or exceeds $50,000.00, expert declarations almost invariably result in a significant reduction in the fee award - often a 50% to 75% reduction in the fees awarded from the amount the defendant initially sought. In most cases, the amount of the reduction in the fee award pays for the cost of the expert declaration anywhere from two to ten times over. I call this damage control after the SLAPP filer (usually the plaintiff) has lost the motion and appeal.
The fee opposition in the trial court is the SLAPP plaintiffs last chance to mitigate the enormous damage that can easily befall him or her (and the plaintff's attorney) if a large amount of fees is awarded. The same can be said of expert declarations in cases where defendants seek to boost the amount of fees awarded. Aside from assembling a detailed record of billing tasks and hours, an expert declaration supported by a solid foundation is like adding a turbo charger to SLAPP fee motion or opposition.
The use of expert declarations by a prevailing SLAPP defendant in support of a request for mandatory attorney's fees can be extremely helpful in boosting the defendant's bottom line - particularly in contingent fee cases where a discretionary multiplier is sought or where the number of hours billed is substantial. But where an unsuccessful SLAPP plaintiff seeks to decimate a massive SLAPP fee request, an expert declaration is essential. Because the unsuccessful SLAPP filer after appeal often becomes the target of a SLAPP fee request that is well in excess of $100,000.00, the use of an expert declaration from an attorney who has demonstrable experience and expertise in anti-SLAPP jurisprudence is indispensable. In light of the newly enacted SLAPPback provisions of CCP section 425.18, the SLAPP plaintiff's attorney becomes exposed not only to a legal malpractice action byt the former client for loss of the prior lawsuit and for the fee award, but the attorney also become subject to a SLAPPback malicious prosecution suit without a meaningful SLAPP defense. (More on SLAPPBacks in future blogs) Hence, a prudent SLAPP filer or defendant who wishes to recover a high fee award or a plaintiff who desires to reduce the fee award as much as possible would be wise to make the strongest record possible for the desired amount of fees to be awarded.
James J. Moneer, Esq.
www.slapplaw.com
The use of expert declarations in making and opposing SLAPP fee motions provides maximum persuasive power in convincing the judge to move as close as possible to the number ultimately sought. Obviously, in the case of an unsuccessful SLAPP plaintiff, zero is ideal but unrealistic in most cases. In cases where the amount of fees sought by the prevailing SLAPP defendant approaches or exceeds $50,000.00, expert declarations almost invariably result in a significant reduction in the fee award - often a 50% to 75% reduction in the fees awarded from the amount the defendant initially sought. In most cases, the amount of the reduction in the fee award pays for the cost of the expert declaration anywhere from two to ten times over. I call this damage control after the SLAPP filer (usually the plaintiff) has lost the motion and appeal.
The fee opposition in the trial court is the SLAPP plaintiffs last chance to mitigate the enormous damage that can easily befall him or her (and the plaintff's attorney) if a large amount of fees is awarded. The same can be said of expert declarations in cases where defendants seek to boost the amount of fees awarded. Aside from assembling a detailed record of billing tasks and hours, an expert declaration supported by a solid foundation is like adding a turbo charger to SLAPP fee motion or opposition.
The use of expert declarations by a prevailing SLAPP defendant in support of a request for mandatory attorney's fees can be extremely helpful in boosting the defendant's bottom line - particularly in contingent fee cases where a discretionary multiplier is sought or where the number of hours billed is substantial. But where an unsuccessful SLAPP plaintiff seeks to decimate a massive SLAPP fee request, an expert declaration is essential. Because the unsuccessful SLAPP filer after appeal often becomes the target of a SLAPP fee request that is well in excess of $100,000.00, the use of an expert declaration from an attorney who has demonstrable experience and expertise in anti-SLAPP jurisprudence is indispensable. In light of the newly enacted SLAPPback provisions of CCP section 425.18, the SLAPP plaintiff's attorney becomes exposed not only to a legal malpractice action byt the former client for loss of the prior lawsuit and for the fee award, but the attorney also become subject to a SLAPPback malicious prosecution suit without a meaningful SLAPP defense. (More on SLAPPBacks in future blogs) Hence, a prudent SLAPP filer or defendant who wishes to recover a high fee award or a plaintiff who desires to reduce the fee award as much as possible would be wise to make the strongest record possible for the desired amount of fees to be awarded.
James J. Moneer, Esq.
www.slapplaw.com
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